June 06, 2009

Stay Classy Ed Whelan

by john blevins (aka, publius)

So there you have it – I’ve been officially outed by Ed Whelan. I would never have done that to my harshest critic in a million years, but oh well.

And to be clear – the proximate cause was that Whelan got mad that I criticized him in a blog post. More specifically, he’s mad that Eugene Volokh made him look rather silly – and he’s lashing out at me for pointing that out, and publishing my name.

For background, Whelan and others have been harshly criticizing Sotomayor for her comment that courts are “where policy is made.” Whelan hasrepeatedlyseizedonthis comment (in print and on TV), and is demagoguing it (much like he did with selective and inflammatory readings of Koh).

The problem, though, is that it’s not even controversial that courts consider policy, which Whelan knows full well. Volokh, responding to one of these Whelan posts, wrote an excellent and definitive blog post explaining in great detail why courts do consider policy (something Orin Kerr echoed a while back too). Volokh’s post embarrassed Whelan because it decimated his argument – and now he’s mad.

Whelan is now pretending that Volokh was responding to his single post about Sotomayor’s “Revealing Joke.” I can’t speak for Volokh, but I doubt he would have taken the time to write such a detailed and examining post if he were responding to a single post. I read Volokh’s post as frustration with the larger attack on “make policy,” in which Whelan has been front and center.

But anyway, he’s right – my name is John Blevins. I recently joined the faculty at South Texas College of Law in Houston (both of which I love) after practicing for years in DC. I’m also now a recent convert to the Houston Rockets, and am enraged that Chuck Hayes doesn’t shoot more.

I thought about ignoring the whole thing – but some of you have been with me for 5 years now, so I thought you all deserved an explanation.

As I told Ed (to no avail), I have blogged under a pseudonym largely for private and professional reasons. Professionally, I’ve heard that pre-tenure blogging (particularly on politics) can cause problems. And before that, I was a lawyer with real clients. I also believe that the classroom should be as nonpolitical as possible – and I don’t want conservative students to feel uncomfortable before they take a single class based on my posts. So I don’t tell them about this blog. Also, I write and research on telecom policy – and I consider blogging and academic research separate endeavors. This, frankly, is a hobby.

Privately, I don’t write under my own name for family reasons. I’m from a conservative Southern family – and there are certain family members who I’d prefer not to know about this blog (thanks Ed). Also, I have family members who are well known in my home state who have had political jobs with Republicans, and I don’t want my posts to jeopardize anything for them (thanks again).

All of these things I would have told Ed, if he had asked. Instead, I told him that I have family and professional reasons for not publishing under my own name, and he wrote back and called me an “idiot” and a “coward.” (I’ve posted the email exchange below).

So there you have it – I’ve been successfully pseudonymous since the Iowa caucuses in 2004. During that time, I’ve criticized hundreds of people – and been criticized myself by hundreds more. But this has never happened.

And yes – I criticized Whelan rather harshly. But that’s what the blogosphere is about. Blogging is not for the thin-skinned. And you would think that someone who spends their days trying to destroy other people’s reputations in dishonest and inflammatory ways wouldn’t be so childish and thin-skinned.

Anyway, I’m not sure whether I’ll start posting under my own name or not. And there were several people who already knew – it’s not like this is a state secret. But still, if I wanted my name out on this blog, I would have done so. It should have been my choice.

Oh – and one last point. In his outing post, Whelan makes a big deal of my so-called “second” pseudonym “Edward Winkleman.” That’s actually a real person – he was an early member of the group blog Obsidian Wings and initially set up the group email address ([email protected]), which is listed in the “About” and "Email Me" sections. Scandalous, I know.

In other words, he’s criticizing me for replying on the Obsidian Wings institutional email to which he initially wrote. What’s funny is that Whelan and I have corresponded on this very address before.

In short, it’s misleading and without context. And sort of mean. And that’s how he rolls.

Anyway, here’s the email exchange below, which is more "revealing" than any of Sotomayor's jokes (click for the full view):

Comments

Again, as has been pointed out innumerable times, the publius name was attached to it and it wasn't going anywhere. 'Publius' 'owned up' to what he wrote. You are using an idiom to covertly make the point that has been made by any number of fresh pseuds visiting here, but you seem to be wanting to disguise the actual implication. Your first principle is that there was no reason to use the publius pseudonym. Even if you believe that, you still have to get to 'and I think Whelan was justified in outing him'.

As for 'personality traits', Eugene Volokh pointed out that the opinion that Whelan expressed is just not right. This leads one to speculate why someone with the pedigree of Whelan would make such an argument. Honesty, while a reflection of personality, is always subject to some real world tests. That Publius pointed to one of them does not automatically open him up for being outed. If I suggest that your use of the idiom indicates that you either don't understand how pseudonyms work or you are using it to conceal a rhetorical point, have I attacked your personality? This logically flows from the points I have described, so it is not a personality based attack.

Interesting, Whelan's post immediately before all this seems to violate your high expectations

I see ... that Wall Street Journal reporters Jess Bravin and Nathan Koppel...fell for the White House’s wild misrepresentation of Judge Sotomayor’s 1999 ruling in United States v. Santa, which merely applied existing Supreme Court precedent on the good-faith exception to the exclusionary rule. Their misrepresentation of Santa...is their lead example...

Memo to reporters: Trust the White House at your peril. (emp mine)

All of those seem to be attacks on the 'personality trait' of honesty. Whelan certainly could have accused publius of being dishonest if he had evidence. I'm sure that if Whelan could have found something that publius in his RL version had written that made something he had written as publius a lie, he would have brought it up, don't you?

To me, the essential point is not the outing itself. The point is that Ed did not defend his ideas. He wrote a silly column, the column got dismantled by Volohk, and publius wrote about the dismantling. So Ed had a choice: ignore, defend his ideas or get all vengeful. He picked getting all vengeful.

As did Libby, Rove, et all when Valerie Plume was outed. As did Michele Malkin when she stalked that family. As does O'Reilly every time he opens his mouth. As did Republicans in Congress over and over with the claims that Democrats weren't as patriot or as opposed to terrorism as they. As was the consistant theme of Palin's speeches.

The pattern is that rightwingers don't defend their ideas with reason or fact. Standard discourse from the right is vengeful thuggery, lies, personal attacks, thereats--retire05 is an example right on this thread! Liz and Dick Cheney lie, lie, lie.

I could go on and on. It is a lot harder to ennumerate rightwingers who consistantly engage in civil discourse on ideas than ones that simply rant and rave.

So in my mind that whole debate on outing is a digression. The point is that Ed, in the manner typical of the debased and degraded state of the Republican party and the conservative side of current political debate in this country right now, did not choose to defend his ideas and indulged in a personal attack instead.

I think all this talk of a civil suit is WELL out of line. I totally decry Whelan's actions - but at the end of the day, we have to take responsibility for posting on the 'net. What he did was a 'dick move,' but I don't see how it breaks any law and the sad fact is that publius made a conscious decision to post on the 'net. 'Outing' was always a possibility.

I think all this talk of a civil suit is WELL out of line. I totally decry Whelan's actions - but at the end of the day, we have to take responsibility for posting on the 'net. What he did was a 'dick move,' but I don't see how it breaks any law and the sad fact is that publius made a conscious decision to post on the 'net. 'Outing' was always a possibility.

Don't disagree. But I don't think it's out of line to publicize and circulate what a crass move this was. It's a behavior that's entirely consistent with the blogosphere, it doesn't escalate behavior and, unlike Whelan, matches response with behavior.

Not to mention that it quite possibly could hurt worse than a law suit....

After reading the comments here and AL, etc. I realize that my opinion of Ed Whalen was somewhat off. I _never_ assumed he was anything more than a hit man. I've read most if not all of this posts for the last year or so and I never realized that he has serious credentials. I never bothered to look at his bio. So, just based on his writing, I assumed he was a polished and higher paid version of, oh, Confederate Yankee, Ace, Capt. Ed, and so on. I thought he was an a amateur legal scholar and a professional propagandist. Yes, more or less, a Sean Hannity focusing on law. I assumed Whalen is wrong all the time because he is ignorant. I was wrong. He's much worse than I imagined--he's wrong because he's lying. If anything good came of his outing of publius, it's that more people have a clearer picture of Ed Whalen.

Dear Warrem Terra: I object to your vicious comments about Pope Benedict XVI as "Pope Ratzi". You are being insulting and offensive about not only a good and holy man, but to all Catholics. Your behavior is no better than that of Ed Whelan. SHAME on you!

I happen to be currentlry reading Benedict XVI's SAINT PAUL. I suggest it would be a good idea to actually reading some of the pope's books before sneering at him.

Sorry to hear about this, Prof. I certainly understand your desire to remain anonymous for the purpose of not "tipping off" your law students. I had a law professor last semester whom I discovered mid-semester was a right-wing blogger (he blogs under his own name, but I didn't know about it until a blog I read linked to one of his posts), and as much as I tried to block it out, I never saw that class the same way again. And for much the same reason, I never told him that I had discovered this about him nor brought up anything political in conversation with him. To his credit, his politics never entered the classroom.

Richard Armitage outed Plame, why isn't he on your list? Less political utility?

I'm not sure what Whelan really meant to accomplish with his action beyond fulfilling a feeling that his enemy should be named. It does seem he felt he was "calling out" Blevins. This is the risk you take when you have a blog and you get into personal disagreements with people. Whelan's action may not be admirable (a poll on a conservative blog suggests most conservatives disagree with what he did), but it's not surprising that it happened. You might also keep in mind that someone gave Whelan Blevins' identity. So there was another person with aknife in Blevins, apparently. This was bound to happen eventually.

I hope everyone here will be just as outraged about the "outing" project of homosexuals that is in the works.

lj: "Your first principle is that there was no reason to use the publius pseudonym."

No, my first principle is that an honorable person does not engage in personal attacks anonymously. (And that applies equally whether you literally sign your attacks with "anonymous" or sign with a pseudonym you have not owned up to.) When there is some reason to maintain anonymity, an honorable person chooses between not attacking people, or attacking them under his own name and accepting the consequences.

"As for 'personality traits', Eugene Volokh pointed out that the opinion that Whelan expressed is just not right. This leads one to speculate why someone with the pedigree of Whelan would make such an argument. Honesty, while a reflection of personality, is always subject to some real world tests. That Publius pointed to one of them does not automatically open him up for being outed."

Publius did not merely point to such "tests", he explicitly claimed that Whelan's error was "willful," and that he was a "demagogue" and a "hitman."

"Interesting, Whelan's post immediately before all this seems to violate your high expectations"

No, it does not, since Whelan does not post anonymously or under the cloak of pseudonym. The stab in the back has long been seen as unmanly and unacceptable, whether it is a literal or figurative stabbing. That does not make all attacks so.

First, you continue to conflate anonymous and pseudonymous. He is not anonymous, Whelan was able to contact him, if he had been at all interested in defending his views, Whelan could have 'owned up' and eviscerated Publius had publius been grossly wrong in claiming that Volokh's post undermined Whelan's claim. That Whelan did not suggests that he is unwilling to defend what he wrote. 'owning up' doesn't get tossed out the window because a name is official in some way.

Furthermore, publius did not 'explicitly claim' the things that you said. You can see the post here. A retraction is in order and your accuracy in attributing arguments underminds your contentions.

Finally, you can't have the criterion of honesty both ways. Either an attack on honesty is something to be deplored because it is an attack on personality, or it is a fair comment when made by a person who has a fixed moniker, which publius does.

Ed Whelan's use of the term "hitman" to describe himself in an e-mail is revealing because he used it in his official capacity as the president of the Ethics and Public Policy Center.

(And didn't I read that his wife also works at the EPPC? That can't reflect well on her either.)

He's an overprivileged bully who clearly has anger management issues, and now he's using the EPPC to intimidate someone who's covering his public activities and public statements. There's just nothing good about that.

For reasons of public safety, Ed Whelan should be under watch. The EPPC should also be scrutinized for other indications that their name is actually meant to be taken as a joke!

[Whelan] is really six years old, and his mommy was mean to him this morning.

As the mother of a six-year old, I consider that a gross slur on that age group, many of whom have worked out that 'he started it' is not an adequate excuse. In fact can I put up my daughter to replace him as director of this ethical centre?

"First, you continue to conflate anonymous and pseudonymous. He is not anonymous, Whelan was able to contact him"

Whelan had to track him down. The posts were anonymous as well as pseudonymous. The moral problems associated with back-stabbing remain.

"if he had been at all interested in defending his views, Whelan could have..."

I agree that Sotomayor's comment on "policy" can provide but a very weak argument against her confirmation for SCOTUS, and so Whelan's original argument seems pretty weak to me also. But that is not what I have been talking about.

"Furthermore, publius did not 'explicitly claim' the things that you said. You can see the post here. A retraction is in order and your accuracy in attributing arguments underminds your contentions."

I saw (indeed quoted) the post. When you approvingly quote someone ("Anonymous Liberal pretty much captured it") and follow their quote with a "yep" you have explicitly claimed it for yourself. No retraction is in order on my part.

"Finally, you can't have the criterion of honesty both ways. Either an attack on honesty is something to be deplored because it is an attack on personality, or it is a fair comment when made by a person who has a fixed moniker, which publius does."

My position against back-stabbing (that we should not make personal attacks if we are not willing to associate ourselves with such attacks) is internally consistent and a norm well predating the internet. The fixed moniker does not change this unless we are "out" -- i.e., unless people generally know that we are the author of the attack.

I think of him as Pope Rat, when I don't think of him as creepy scumbag.

By the way, Sean, I have read the pope's work, back when he was Chief Inquisitor, and he's a homophobic arse and a supporter of the grand Church cover-up that enabled so many child molesters to move safely from parish to parish over the decades. This may be your definition of a "good and holy man", but it's not mine.

1) Clicking the "Email Me" link on the "Obsidian Wings" home page, beneath the "About" link at the top-left corner, where nearly every single English-speaking reader in the world begins reading a webpage; and

2) Adding publius's email address at STLC, which can be found under the very first Google result for "John Blevins Southern Texas Law College."

I mean, I can see how this activity might have been exhausting for a man of Whelan's capacities, but I'm not sure "tracked down" is really necessary here.

Publius, I started reading your posts when you had a site called Legal Fiction. Was sad when you quit. Lo and Behold, when the Sotomayer nomination came up I cruised over to Obsidian Wings to read what was being said and there you were. Publius is back in town! Don't quit. I learn a lot from you and the other bloggers on this site.

Whelan had to track him down. The posts were anonymous as well as pseudonymous. The moral problems associated with back-stabbing remain.

"In other words, he’s criticizing me for replying on the Obsidian Wings institutional email to which he initially wrote. What’s funny is that Whelan and I have corresponded on this very address before." link

Your definition of 'track down' is faulty. Whelan could already contact publius. He simply tried to bully him by getting an anonymous source to give him his private email so he can threaten him. Eschewing previous lines of communication in order to make more direct contact is, I think, cyber stalking.

When you approvingly quote someone ("Anonymous Liberal pretty much captured it") and follow their quote with a "yep" you have explicitly claimed it for yourself.

Your definition of 'explicit' is also faulty. He quoted another blog post, provided a link to it. There is no transitive notion of explicitness that gets bounced around because someone says 'yep'.

My position against back-stabbing (that we should not make personal attacks if we are not willing to associate ourselves with such attacks) is internally consistent and a norm well predating the internet.

You may be internally consistent, but that's easy when you creating your own new add on definition, that back-stabbing somehow means an attack by a pseudonymous blogger on a publicly posted piece. If you can show me that Whelan had some sort of expectation that the entity named publius owned him some sort of deference (which probably gets at why Whelan reacted the way he did, but a hurt ego and a surfeit of pique does not a backstabbing make), I will accept that it is backstabbing, but until then, it appears to be hypocrisy on your part to claim that Whelan's personality was attacked by the attack on Whelan's 'honesty', whereas you are uninterested in holding Whelan to your same demanding pre-internet standards. Your moral compass may seem true to you, but it is so tightly tethered to your politics that you might was well hold a magnet to it when seeing where you are going to go.

True enough, hilzoy; nonetheless, in context -- that context being first, lj stating that publius was not "anonymous" because Whelan could contact him at any time, and Pitelli responding that Whelan had to track him down -- it remains true that the nature of the "tracking down" amounts to clicking the ObWi email link. That is the way one contacts publius through this site, and it is trivial.

I actually figured out publius' nom-de-plume about a year ago just based on general inference -- I had read enough of publius' writings over the years that it wasn't particularly difficult.

Just so I don't sound too self-congratulatory, I promptly forgot it and didn't really bother to go look again, because, well, I really didn't care. I remember the first name and the face on the faculty page, but that was about it.

Anyway -- publius' four-word post title pretty much covers it. Way to go, Ed, you twit.

Whelan had to track him down. The posts were anonymous as well as pseudonymous. The moral problems associated with back-stabbing remain.

A does not equal P. Publius has a public persona, his name is Publius. If you write him here, and say "Hey Publius", he will respond. If Publius had said something here that was illegally libelous, or inciting people to riot, etc, to the point where lawyers and law officers needed to intervene, you can be certain that authorities would have found his real-world identity post-haste. As is true with all public pseudonyms of note.

Both Whalen and Publius have ample soapboxes. They could have held public debate on the topic of choice at any point. The 'anonymous' aspect of the pseudonym Publius is barely any matter. The fight exists between two minds and two points of view, rather than two 'real' names. Ed Whelan could have slammed 'Publius' every day on his blog from now til St. Stephen, and it would have been fair game. Publius' public reputation was just as on-the-line as Whelan's, as I am certain that Publius takes pride in his writing and in this website. The 'stabbing in the back' metaphor you hope will stick is just nonsense. Publius stands by everything that he says, as Publius. To any neutral observer, suddenly knowing a second name for Publius does not change the substance or ideals of which he writes. I gain nothing from this new knowledge, nor does anyone.

There is no moral problem here. Blogging is merely an extension of the fourth estate, where facts, analysis, and opinion are the stars, not the by-lines. Pundits (all sides) are interchangeable, tapped for their ability to fill a box with a predictable partisan opinion. Only a few may go on to some degree of remunerative notoriety. And that is based on the pundit's consistent ability to render compelling arguments to their base audience. In other words, Ed's fear that a blogger named Publius might have a detrimental effect on his career, shows what a weakling Ed really is. They are talking heads, talking it out in the arena of talking. Knowing their real names is of no more concern to me, or anyone else, than knowing the real names of professional wrestlers. It's the game that matters, not the players.

One trick of strawman rhetoric used here against Publius is the insistence that we're claiming that pseudonymous writing is a legal or inherent 'right'. It's not. The word 'etiquette' is far more applicable. Farting in someone else's personal space is not illegal, nor can anyone claim a right to a fart-free space. However, if you fart in someone's space, you're an ass.

Last point: as long as hiring committees, tenure boards, management hierarchies, and bureaus of investigation are opaque in their machinations, so goes the need for individuals to mask themselves. Self-preservation is not cowardice. Self-expression is not a privilege. Anyone who has posted anything to the sentiment of "If you were really afraid for your friends and family, maybe you shouldn't have posted" is a fascist, in no uncertain terms.

"You may feel you have been 'outed' in some McCarthyite fashion, but what is at least equally McCarthyite, Orwellian or even Kafkaesque is to be maligned by anonymous accusers you cannot face."

Publius wasn't "anonymous." He's been blogging here for years now. In what sense am I able to face "DWPittelli" that I haven't been able to "face" publius?

"Naturally our Constitutional right to face witnesses against us is limited to criminal prosecutions, but I believe that if you criticize specific people, you have an analogous obligation to use your own name"

I believe in the kindness of strangers, but so what? Argument by assertion doesn't go very far.

"But one way of stepping away from an argument is by refusing to own up to it. Another is to emphasize the personalities of your opponents over their arguments. Blevins was doing both before Whelan responded."

Ah, yes, by outing publius, Whelan was not "emphasiz[ing] the personali[y] of [his] opponent."

Gotcha. Or, as we sometimes say: wtf?

"The idiom to 'own up to' something is to confess to it, to attach your name to it."

Publius did attach his name to all his posts. Do you believe there is some platonic ideal of "names," as opposed to "the name we are known by"? If so, please define that ideal, and your reasoning by which you derive it. Thanks.

"Writing (and/or approvingly quoting) that your opponent’s claims are so specious that even he must not believe them is of course an attack on your opponent’s honesty."

Of course it is; so what? What's that got to do with the price of tea in Tibet?

"No, my first principle is that an honorable person does not engage in personal attacks anonymously."

Do you really not understand the distinction between "anonymous" and "pseudonymous"?

"The posts were anonymous as well as pseudonymous."

Apparently you don't understand what "pseudonymous" means, as this is flatly untrue. At no time has publius been the slightest bit more "anonymous" than you or I am in what we post to the internet. (That is, I'm assuming you don't post under some other, random picked, names.)

"My position against back-stabbing (that we should not make personal attacks if we are not willing to associate ourselves with such attacks) is internally consistent and a norm well predating the internet."

Personally, I've never heard of such a definition of "back-stabbing." Please give some links to citations demonstrating this "norm." Thanks.

"The fixed moniker does not change this unless we are 'out' -- i.e., unless people generally know that we are the author of the attack."

"People who use their real name when blogging usually feel the 'anonymous coward' is a fitting term for those who don't."

That's interesting. What's your cite to support that claim?

Because I have a slip of paper here in my pocket that says people who make up alleged facts to support what's actually just their personal opinion have very large heads filled with the turds of humongous Mezoic lizards, and that "big-headed Mezoic lizard poopy-face turd-head" is a fitting term for those who engage in that kind of self-serving rhetorical claim.

Sounds to me like you could have avoided this whole mess by simply explaining that you were pre-tenure instead of the "private, family and professional" defense which, lets face it, sounds rather murky. The truth of the matter is that both of you acted unlike adults. Also, given that this is a "hobby" that you *know* is in conflict with your professional goals, it sounds to me like you should have 1) known, given the risks, not to have blogged to begin with, anonymously or not and 2) understood that this was probably going to happen eventually.

I'm sorry for your outing but honestly, this all could have been avoided had you simply held your tongue until tenure-ship instead of partaking in what you knew to be behavior that would be harmful to your career. We would all be poorer for it, sure, but the world has enough bloggers to be okay without one who is risking career suicide by doing so. And I am not defending Mr. Whelan here, just to be clear, but I do think some self-introspection is necessary on your part.

Holy crow! I have never read so much silliness in my life! Adults(I assume) in a frenzy because someone's real name is now attached to his own opinions?If you believe in what you think and write, why on earth would you want to hide your name? What are you so afraid of? If you are so worried about what your family, clients and colleagues might think, regardless of your or their political convictions, maybe you should have alook at yourself - what are you writing that would be that controversial? Or can't you take the confrontation? No-one is forcing you to be on the Internet - at least have the courage of your convictions. Mr. Whelan had a right to know who was criticizing him, as does anyone.If its all just a hide-and-seek game, who can take that seriously, anyway?

He shouldn't have outed you, though you are wrong about Sotomayor and policy. The idea of judges making policy runs contrary to the founding principle of separation of powers & the primacy of the legislature within the US Constitution. Others will site the steady drift of the courts into the territory of the legislature as evidence that this is the accepted role of the courts, but this would all but ignore the underlying argument for the separation of powers and the prominence of the legislature within the US Constitution. Though I'm sure fans of the Nouveau Oligarchy are not troubled in the least by this.

As a Canadian, I don't often pop by your blog, but I tend to enjoy it when I do. Ed Whelan is pompous, mean-spirited fool without an ounce of chivalry. And as far as I'm concerned, his apology is fake.

Dear Mr. Farber
Its "Elisabeth" with an "s" BTW.
I did put in my email but I don't know why its not coming up. I would have trouble giving out my address and phone number as I would be afraid of strangers knocking on my door who might disagree with me - that said, I might be wrong about Mr. Blevins place of work being known, and, you're right, maybe his home address too. Iguess I didn't think through what strangers might do, only the people he knows personally.

"I would have trouble giving out my address and phone number as I would be afraid of strangers knocking on my door who might disagree with me - that said, I might be wrong about Mr. Blevins place of work being known, and, you're right, maybe his home address too."

That's the thing: there are these things called "phone books," as well as online directories. Not to mention the repercussions publius may suffer with tenure, with students, with colleagues, with relatives. Then there's the fact that when you post on the internet, you might anger some crazy person, who will start harassing you now that they know your phone number, address, place of work, etc.

There's no constitutional write to publish pseudonymously, of course, but revealing someone's identity without a very good cause is, at best, extremely rude and inconsiderate; it's harassment, pure and simple, no different than if I ferreted out your own address and phone number and posted them to the internet, along with a link to any possible photos of you online, or any other personal information in the public record about you.

What's courteous is to leave it to people to make their own decision as to what personal details to make public in the venues of their own choice. It's not a decision someone should make for someone else without a very good cause indeed (you've found out they're a criminal, say).

"I'm just glad to have been able to get under the skin of at least a single leftist jackass"
Ah, the wingnut "moral" code: if it annoys liberals, do it. Such a pathetic, nihilistic and self-indulgent way to live.

I'd never heard of you before this little squabble and my guess is that I disagree with your point of view but I do support your right to use a pseudonym. What should matter is your ideas, not anything about your person. If your ideas are good, it wouldn't matter if you were a scumbag; if your ideas are bad, it wouldn't matter if you were Mother Theresa. Nothing about your person has any relevance to what you write. And as I'm sure you know but some do not, the pseudonym "Publius" was used by three of our Founding Fathers when writing the Federalist Papers.

big difference between using a pseudonym and anonymity. there is a centuries old long honored tradition of writing under a pseudonym, especially in repressive regimes which punish, harass, attack and do violence (of all forms) to those who dare criticize the power holders.

i only hope this ends up benefiting / strengthening you and backfiring on those like Whelan who are so sure they have all the answers to right and wrong so facilely using their dualistic black & white simplistic view of the world and who believe they are entitled to judge all they consider to be the 'other'

2) http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/griswold.html
The Ninth Amendment reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The Amendment is almost entirely the work of James Madison. It was introduced in Congress by him and passed the House and Senate with little or no debate and virtually no change in language. It was proffered to quiet expressed fears that a bill of specifically enumerated rights could not be sufficiently broad to cover all essential rights and that the specific mention of certain rights would be interpreted as a denial that others were protected.

In presenting the proposed Amendment, Madison said:

"It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [the Ninth Amendment]."
Mr. Justice Story wrote of this argument against a bill of rights and the meaning of the Ninth Amendment:
"In regard to . . . [a] suggestion, that the affirmance of certain rights might disparage others, or might lead to argumentative implications in favor of other powers, it might be sufficient to say that such a course of reasoning could never be sustained upon any solid basis . . . . But a conclusive answer is, that such an attempt may be interdicted (as it has been) by a positive declaration in such a bill of rights that the enumeration of certain rights shall not be construed to deny or disparage others retained by the people."
He further stated, referring to the Ninth Amendment:
"This clause was manifestly introduced to prevent any perverse or ingenious misapplication of the well-known maxim, that an affirmation in particular cases implies a negation in all others; and, e converso, that a negation in particular cases implies an affirmation in all others."
These statements of Madison and Story make clear that the Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights which the Constitution guaranteed to the people.

While I am sorry that the choice to come out was taken from you, I think you are old enough and secure enough financially to go thru this change. My life has been immeasurably easier being totally out and about.

When the secret is not yours, it is not yours to reveal either. What an asshat. I don't care if he's apologized. His petty reaction may have harmed your family, your job, your students... but never your reputation. If he wanted to harm your reputation he should never have blabbed.

"The problem, though, is that it’s not even controversial that courts consider policy..."

Is the controversey over Ms. Sotomayor's comment that she stated Courts of Appeal "consider" policy, or that she stated that Courts of Appeal are where policy is made?

You know the answer to this, I suppose. I would guess that like Ms. Sotomayor, you have no problem with Courts of Appeal, District Courts, the Supreme Court or even State Courts "making policy," so long as it's policy with which you agree, because after all, why wait for Legislators to make law, when Judges (or Justices) can do it so much faster, better and with more wisdom!

As for you and Mr. Whelan's pissing match, maybe you should arm wrestle...

I would guess that you're arguing with voices in your head, and can't be bothered to distinguish one individual's beliefs from another. I would also suggest you take up with Eugene Volokh the notion that the Supreme Court doesn't consider policy.

I'd also suggest looking into the differences between the Supreme Court (which was the subject of the discussion), the Courts of Appeal, District Courts, and state courts, rather than lumping them all together in your consideration.